Tag Archives: parole in place

Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing

On June 18, the Biden Administration announced a “Parole in Place” plan to allow certain undocumented spouses and children of U.S. citizens to apply for permanent residence within the U.S., instead of needing to depart for Immigrant Visa processing. The Fact Sheet: President Biden Announces New Actions to Keep Families Together provides basic information on the program, which the Administration says will promote family unity.

The Administration estimates there are about 500,000 spouses and 50,000 children (or stepchildren) of U.S. citizens who will benefit from this program. Under current law or policy, they cannot adjust to permanent residence because they were not inspected and admitted lawfully into the United States. There are risks to departing the U.S. to apply for the Immigrant Visa abroad, even when it is based on an approved I-130 immigrant petition filed by their U.S. citizen spouse or parent.

Critics argue this amounts to “amnesty” for individuals who came to the U.S. without proper visas or travel documents. While the high number of migrant encounters and unlawful entries at the Southwest Land Border (between U.S. and Mexico) is alarming, family unity has been a bedrock of U.S. immigration.

If implemented, the proposed program strikes a delicate balance between creating lawless open borders and initiating mass deportation, which are both extreme and unworkable measures. Whether it will survive possible legal scrutiny or is really “political pandering” are reasonable but separate questions.

The exact application process – such as required forms, filing fee and documentary evidence – has yet to be decided. Until a proposed rule is published in the Federal Register and public comments are accepted and reviewed, it will not go into effect as a final rule. USCIS will reject any filings related to this process received before the official start date, which might begin in late summer 2024.

Who Will Benefit from the Parole in Place Program?

The Parole in Place program is intended to benefit certain green card applicants who:

  • are physically present in the U.S. without inspection and admission or parole;
  • are legally married to a U.S. citizen OR are legally the children or stepchildren of a U.S. citizen, as of June 17, 2024;
  • have been continuously present in the U.S. for 10 years or more, as of June 17, 2024;
  • do not pose a threat to public safety or national security;
  • are otherwise eligible to apply for adjustment of status; and
  • merit a favorable exercise of discretion.
[NOTE: For U.S. immigration purposes, a “child” is an unmarried person under the age of 21. If the person is a “stepchild”, the marriage between the U.S. citizen and the biological parent must have occurred before the stepchild turned 18.]

Spouses and children of U.S. citizens who are not physically present in the U.S. as of June 17, 2024, have not been continuously present in the U.S. since June 17, 2014 or earlier, have a serious criminal record that poses a risk of harm to the public or nation, or have negative factors that make them ineligible for or undeserving of adjustment of status will not benefit from this program.

How Will the Parole in Place Program Expand Who May Apply for Adjustment to Permanent Residence?

Under statutory law, INA 245(a) (8 USC §1255), an applicant must have been “inspected and admitted or paroled” into the United States to apply for adjustment of status. The Form I-485, Application to Register Permanent Residence or Adjust Status, is filed with USCIS by qualified applicants seeking a green card while they are inside the U.S.

If they do not qualify for I-485 adjustment, they could still be eligible for Immigrant Visa processing at the U.S. Consulate or U.S. Embassy abroad. But a departure carries risks, including long-term or permanent separation from their family in the U.S., if the visa is denied.

Even spouses or children of U.S. citizens are not eligible for INA 245(a) adjustment if they have not been inspected and admitted or inspected and paroled into the United States, which is a key requirement.

An eligible applicant who did not enter the U.S. with proper admission, but later receives Parole in Place will meet one major requirement for adjustment of status.

Upon receipt of a properly filed Parole in Place application, USCIS will decide, on a case-by-case basis, whether to grant parole in the favorable exercise of discretion. In its Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families, USCIS states it will aim to detect potential fraud, consider the applicant’s immigration record and criminal history (if any), and perform background checks and national security and public safety vetting in the process.

What are the Advantages of the Parole in Place Plan?

1. Eligible parolees may apply for employment authorization and receive temporary protection from removal

In general, a person who is granted parole may apply for an Employment Authorization Document (EAD) or work permit by filing a Form I-765, Application for Employment Authorization, with USCIS under category (c)(11). Furthermore, parole serves as a temporary relief from removal (deportation) for a certain period of time.

2. A Parole in Place grant will allow the applicant to meet the “admission and inspection” requirement for adjustment of status under INA 245(a)

Under current U.S. immigration law or policy, applicants who did not enter the United States with proper inspection and admission or parole cannot adjust to permanent residence. They must instead depart the U.S. to apply for the Immigrant Visa abroad.

A departure from the U.S. triggers the 3/10-year bar under INA 212(a)(9)(B) if they accrued unlawful presence lasting more than 180 days, starting at age 18. Thus, they need to file for and obtain a Form I-601 waiver (if they are abroad) or Form I-601A provisional waiver (if they are in the U.S) to receive the Immigrant Visa before the 3/10-year bar expires.

To get the waiver, the applicant must prove they have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will face extreme hardship if they are not permitted to re-enter the United States as an immigrant. “Extreme hardship” is often very difficult to prove. It must be at a higher level than the ordinary hardship resulting from family separation or the qualifying relative’s relocation to the applicant’s home country for family unity.

If the Form I-601 waiver application is denied by USCIS, the Immigrant Visa applicant is left stuck outside the U.S. (until the unlawful presence bar expires). If the Form I-601A provisional waiver is denied, the applicant might decide to forego the Immigrant Visa process and remain in the U.S. without authorization and risk the possibility of removal (deportation) due to the unlawful presence.

Under the proposed policy, eligible applicants who would otherwise have to apply for a green card through consular processing may request Parole in Place from USCIS to meet the “inspection and parole” requirement for INA 245(a) adjustment of status.

What are the Limitations of the Parole in Place Plan?

1. Parole in Place, by itself, does not make the applicant a permanent resident or provide lawful nonimmigrant or immigrant status

Obtaining Parole in Place does not guarantee permanent residence and only gives you temporary, authorized stay. It is also not a direct path to U.S. citizenship. Applicants must first be granted permanent residence and maintain this status for three or five years before they meet one of the requirements for naturalization.

Parole allows an applicant – who entered the U.S. without proper inspection and admission – to otherwise meet just one of the eligibility criteria for I-485 adjustment. Being lawfully admitted or paroled into the United States is one requirement to filing for permanent residence when the applicant is already physically present in the country. But, by itself, it is not enough to get a green card.

2. Parole in Place does not excuse the applicant from meeting all other eligibility requirements for I-485 adjustment of status and USCIS’ favorable exercise of discretion.

Except for Immediate Relatives (e.g. spouses and children of U.S. citizens) and certain other visa categories, green card applicants must have continuously maintained lawful status since entry into the United States. Otherwise, if they ever violated their status or fell out of status, they do not qualify for INA 245(a) adjustment.

There are also inadmissibility grounds that prohibit the grant of permanent residence. Some of the most common are INA 212(a)(6)(C)(i) (fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits), INA 212(a)(2)(A) (certain criminal convictions), and INA 212(a)(9)(A) (removal orders). If you have an inadmissibility bar, you will be denied adjustment of status unless you qualify for and receive the necessary waiver from USCIS. Some inadmissibility bars, such as INA 212(a)(2)(C) due to controlled substance trafficking, cannot be waived in green card applications.

In addition, spouses and children of U.S. citizens must have an approved Form I-130 immigrant petition filed on their behalf to apply for family-based permanent residence. The U.S. citizen must show, by a preponderance of evidence, there is a real spousal relationship or parent-child/stepchild relationship to get an I-130 approval. Furthermore, if the noncitizen spouse is found to have previously entered a sham marriage to a prior petitioner to obtain U.S. immigration benefits, USCIS is prohibited from approving a subsequent (new) I-130 petition under INA 204(c).

For more information on the I-485 adjustment of status application process, see:

Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status?

Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions

A Key Requirement for I-485 Adjustment of Status: Inspection and Admission OR Inspection and Parole

How Will the Parole in Place Program Take Effect?

The Parole in Place program is expected to be implemented by federal rulemaking, not by Congressional action, which is more complex. Due to political polarization, ideological cohesion, and lack of bipartisanship in today’s 118th Congress and prior Congresses, the U.S. immigration system has been broken for decades. There is no real agreement on how to fix this deep-rooted problem, which has no simple solutions. The last major comprehensive reform was The Immigration Reform and Control Act (IRCA) passed by the 99th Congress and signed into law by President Ronald Reagan on November 6, 1986.

Under the federal rulemaking process, USCIS (DHS) may implement a new rule by publishing a Notice of the Proposed Rulemaking to the Federal Register for the public to view at http://www.federalregister.gov. This notice allows the public to comment on whether or not a rulemaking should be initiated. The comment period normally takes at least 30 to 60 days. After the comment period closes, the agency reviews and analyzes all the comments. Then it decides whether to implement the proposed rule, modify it, or withdraw it.

A federal rule is issued by agencies, such as DHS, that govern how laws will be applied. It is not the same as statutory law passed by Congress. Statutory law under INA 212(d)(5) (8 U.S.C. 1182(d)(5) does allow parole authority to be exercised, but only on a case-by-case basis, for urgent humanitarian reasons or a significant public benefit, and for a temporary purpose.

To endure possible legal challenges in courts, the Parole in Place program must not contradict U.S. immigration laws (or Congress’ intent when it passed the laws). This is even more critical with the U.S. Supreme Court’s June 28th decision to strike down the Chevron doctrine. In Loper Bright Enterprises, it found that courts do not have to defer to federal agencies’ regulations interpreting ambiguous laws. Courts may instead apply their own interpretation of unclear statutes.

Parole in Place for military families has existed for at least a decade. But now that the U.S. Supreme Court has overturned Chevron, the DHS will have to make an even stronger case for certain undocumented spouses and children of U.S. citizens. Although the Parole in Place plan is expected to become a temporary fix, a federal rule now carries less weight.

Consult a qualified U.S. immigration attorney to discuss any potential Parole in Place benefits that may apply to you. This is NOT new law. Currently, it is a proposed program by Executive Action, which will not go into effect until it is published as a final rule in the Federal Register.

Beware of “notarios” and other consultants who make false promises to get you to pay them fees. If you rely on bad advice, you could put yourself in a worse position to legalize your U.S. immigration status and might further end up in removal (deportation) proceedings.

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The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to changeDo not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.

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A Key Requirement for I-485 Adjustment to Permanent Resident Status: Inspection and Admission OR Inspection and Parole

When you are the beneficiary of an immigrant petition (Form I-130 or Form I-140) and you are already in the United States, you might be eligible to file for a green card without departing for consular processing of the Immigrant Visa.

Statutory law under INA 245(a) (8 U.S.C. §1255) allows a nonimmigrant (e.g. F-1 student or H-1B temporary worker) to adjust to permanent residence based on an approved immigrant petition. This involves filing the Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS, either concurrently with or after the Form I-130 or Form I-140 filing.

An approved or approvable Form I-130 (family-based) or Form I-140 (employment-based) petition does not necessarily mean you qualify for adjustment of status. There are several eligibility requirements to meet for INA 245(a) adjustment.

Except for INA 245(i) and VAWA-based applicants, one key requirement is that you must have been “inspected and admitted or paroled” into the United States. This applies to even “Immediate Relatives” of a U.S. citizen; namely, spouses, unmarried children under 21 years old, and parents (if the U.S. citizen is 21 years of age or older).

What is the Difference Between “Admission” and “Parole”?

In 1960, Congress amended INA 245(a) to permit otherwise eligible applicants who have been “inspected and admitted or paroled” into the United States to apply for adjustment of status. Courts, legacy Immigration and Naturalization Service (INS), and USCIS have read the statutory language, “inspected and admitted or paroled,” to mean:

  • Inspected and admitted into the United States; OR
  • Inspected and paroled into the United States.

An “admission” means you appeared before a U.S. immigration officer at a U.S. port of entry for inspection, and you were formally admitted to the United States.

Meanwhile, “parole” is a temporary and discretionary relief provided on a case-by-case basis. Parole is when the U.S. immigration officer allows you enter the U.S. without completing the formal admission process, but only after inspection and some vetting are performed.

Main Types of “Admission” for INA 245(a) Adjustment of Status

Admission Stamp in Passport from an Inspection Officer

The most straightforward way to obtain lawful entry to the U.S. is to present your valid passport and U.S. visa at a U.S port of entry to complete the inspection and admission process. An example is when you arrive from overseas at an international airport in the U.S., show your valid F-1 visa in your passport to the U.S. customs officer, answer questions about your intended studies, successfully complete the inspection process, and are allowed into the U.S. with an F-1/duration of status (D/S) admission stamp in your passport.

“Waved-Through” by an Inspection Officer

Applicants may be admitted to the United States if they are “waved through” at a land port of entry. In Matter of Areguillin, the Board of Immigration Appeals found that a person is “admitted” to the U.S. if he physically presents himself for inspection, makes no false claim to U.S. citizenship, and is allowed to enter the U.S., even if the officer does not ask any questions and does not check his travel documents. Verbal communication or physical gestures from the officer allowing the applicant to enter the U.S. is enough.

To satisfy the inspection and admission requirement for INA 245(a) adjustment, however, applicant must prove that they were indeed waved through at a U.S. port of entry. Third-party affidavits from persons with direct knowledge of the facts and corroborating, objective documents are normally required. The USCIS officer adjudicating the Form I-485 must also determine the claim is credible. In addition, if the applicant was traveling with U.S. citizens in a car with U.S. license plates, he will be expected to prove that he was admitted as a noncitizen and was not presumed to be a U.S. citizen.

Fraud or Willful Misrepresentation of Material Facts to Obtain Admission to the U.S.

Admission to the U.S. may be gained by fraud or willful misrepresentation of material facts. An example is the use of a fake passport or a passport belonging to someone else, but advances in technology has made it easier for U.S. customs officer to detect this type of fraud. Another example is when a person obtains a valid visa by lying on the visa application at the U.S. Consulate.

In any event, the Board of Immigration Appeals and most courts have found that a person who is inspected and allowed to enter the U.S. is “admitted,” even if the admission was obtained by fraud or misrepresentation.

INA 212(a)(6)(C)(i) states a person is permanently inadmissible to the U.S. if he used fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits, such as admission at the port of entry. Thus, even if the applicant meets the “inspection and admission” requirement for INA 245(a) adjustment, he would still be denied a green card unless he qualified for, filed for, and obtained the Form I-601 “fraud waiver” under INA 212(i).

Main Types of “Parole” for INA 245(a) Adjustment of Status

Paroled for Deferred Inspection

U.S. Customs & Border Protection (CBP) may grant deferred inspection to “arriving aliens” who are found inadmissible on primary inspection, but who would likely overcome the inadmissibility finding with additional evidence or a waiver.

In such cases, CBP may allow you to enter the U.S. after verifying your identity and concluding you pose no national security risk. With deferred inspection, you are paroled into the United States and must return to CBP to provide additional documents to complete the inspection at a later, specified time.

Urgent Humanitarian Reasons or Significant Public Benefit

Through the filing of a Form I-131, Application for Travel Document, with USCIS, an eligible applicant may be granted parole based on urgent humanitarian reasons or significant public benefit. Special parole programs have included:

Military Parole in Place

In rare cases, USCIS may grant parole to applicants who are already in the United States, but who have yet to be inspected and admitted or inspected and paroled into the country.

In 2010, USCIS announced the creation of the Military Parole in Place policy. It issued a November 2013 Policy Memorandum and a November 2016 Policy Memorandum to clarify or expand the eligibility requirements.

Parole in place is made available on a case-by-case basis, under INA 212(d)(5), to a qualifying spouse, child, or parent of an active duty member or past member of the U.S. armed forces or Selected Reserve. If they do not have a criminal conviction or other serious adverse factors, they are usually granted parole in place to show support for the sacrifices made by U.S. service members, veterans, enlistees, and their families.

Proposed Plan: Parole in Place for Undocumented Spouses and Children of U.S. Citizens

On June 18, 2024, the Biden Administration announced a “Parole in Place” plan to allow certain undocumented spouses and children of U.S. citizens to apply for permanent residence within the U.S., instead of needing to depart for Immigrant Visa processing. The Fact Sheet: President Biden Announces New Actions to Keep Families Together provides basic information on the program, which the Administration says will promote family unity.

Find more details at: Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing.

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For more information on the Form I-485, Adjustment to Permanent Resident process, read:

Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status?

Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions

If you are not eligible for I-485 adjustment, you might still be able to obtain the green card through Immigrant Visa processing at the U.S. Consulate or U.S. Embassy abroad. But U.S. immigration violations or criminal records can make you inadmissible and disqualify you from obtaining permanent residence on INA 212 grounds.

When you are inadmissible under section 212, you will not get the green card through I-485 adjustment or Immigrant Visa processing, unless you qualify for a limited exception or unless a waiver of inadmissibility is available, you qualify for it, and it is granted to you. Inadmissibility grounds include health concerns (communicable disease of public health significance), criminal activity, national security, public chargefraud and misrepresentation of material facts to gain immigration benefitsunlawful presence, and prior removals.

Before you apply for permanent residence, be sure to consult a qualified U.S. immigration attorney for legal advice in your specific case.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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